We would like to thank and acknowledge Paulina Davis
for her work as primary author of this report, as well as
Randi Levine and Sarah Part for their significant
contributions. We would also like to thank the former
Advocates for Children interns who helped collect,
enter, and organize charter school discipline policies for
this report. Finally, we would like to thank the students
and families that we serve for sharing their experiences
with us.
We are grateful to The Atlantic Philanthropies for their
generous support of our work.
Since its founding in 1971, Advocates for Children of
New York (AFC) has been protecting the educationrelated needs of children most at risk of academic failure
or school-based discrimination due to such factors as
poverty, disability, race, ethnicity, language barriers,
immigration status, homelessness, or involvement in the
child welfare or juvenile justice system. AFC’s mission is
to promote access to the best education New York can
provide for all students, especially students of color and
students from low-income backgrounds. AFC uses
integrated strategies to advance systemic reform,
empower families and communities, and advocate for
the educational rights of individual students.
© 2015 by Advocates for Children of New York, Inc.
2 | Civil Rights Suspended
EXECUTIVE SUMMARY .................................................................................................................4
APPLICABLE LAWS GOVERNING CHARTER SCHOOL DISCIPLINE .............................9
KEY FINDINGS ............................................................................................................................. 12
Excessive Punishments .......................................................................................................................................12
Due Process ..........................................................................................................................................................16
Students with Disabilities ....................................................................................................................................24
Alternative Instruction ........................................................................................................................................27
RECOMMENDATIONS .............................................................................................................. 29
February 2015 | 3
Ms. Lopez1 rejoiced when her daughter, Mia, was accepted to a local charter school for kindergarten. Ms.
Lopez believed that this school would provide her daughter with the best chance of getting a high-quality
education. However, within the first month of school, the charter school suspended five-year-old Mia for
disruptive behavior, claiming that she had hit another student. Ms. Lopez was very concerned about Mia’s
alleged behavior and therefore requested that Mia be evaluated to determine if she had a disability and
needed special education services. While evaluations were pending, the charter school suspended Mia another
two times for impulsive behavior. Ms. Lopez tried to find out from Mia what had happened, but given Mia’s
age and a delay in her communication skills, Ms. Lopez was unable to get an explanation that she could
understand.
Ms. Lopez was devastated when the charter school principal then told her that, based on the charter school’s
policy, because Mia had received three suspensions, the charter school was expelling her after just two months
of kindergarten. The principal stated that the school would give Ms. Lopez a two-week “grace period” to return
Mia to her preschool (for which she was no longer eligible) or enroll her at her zoned elementary school.
During those two weeks, Mia could attend school if her mother stayed with her the whole time.
Ms. Lopez had chosen the charter school because it had touted the extra support it provided to students to
help them succeed. But at the time when Mia needed support, the charter school told Ms. Lopez to take Mia
someplace else. Ms. Lopez could not believe that the charter school was giving up on Mia so quickly.
Mia’s charter school expelled her without providing written notice of the charges against Mia and the school’s
proposal to expel her, without scheduling a hearing to consider Mia’s actions and determine an appropriate
penalty, and without following any procedures required to protect the rights of students with disabilities even
though Mia was being evaluated for special education services. Without the opportunity for a hearing, Mia’s
mother did not have the chance to ask questions about what had happened or to suggest a less severe
response that would address Mia’s behavior and allow her to stay at the school. Because the school did not
follow the required procedures for students with disabilities, Mia did not receive a behavioral assessment to
determine the cause of her behavior and develop effective intervention strategies.
When Advocates for Children of New York (AFC) reviewed the charter school’s discipline policy, we found that,
although it had been approved by the charter school’s authorizer and the New York State Board of Regents, it
did not comport with the requirements of the law. The policy did not require notice prior to imposing
suspensions or expulsions, did not require a hearing prior to suspensions or expulsions, did not place any limits
on the kinds of infractions that could trigger an expulsion, and did not include any of the legal protections
required for students with disabilities. Indeed, a school administrator acknowledged that, before AFC’s
involvement in Mia’s case, she had not been aware of the need to follow additional procedures for students
with disabilities, as they were not included in the charter school’s policy.
After AFC intervened, Mia was able to stay at the charter school and begin receiving special education supports
and services, including an individualized behavioral plan, that helped to improve her behavior in class.
• • •
1
All names in this report have been changed to protect the anonymity of the students and parents we have assisted.
4 | Civil Rights Suspended
Over the past few years, Advocates for Children of New York (AFC) has assisted an increasing
number of parents who have contacted us with concerns about charter school suspensions and
expulsions. In the past year-and-a-half alone, AFC has provided guidance or legal representation
to more than 100 parents in charter school suspension and expulsion cases. Most of these parents
had celebrated winning the charter school lottery and wanted their children to continue attending
the charter school.
In helping parents with these cases, AFC found that charter school discipline policies were not
always readily available.2 Parents often did not have a copy of the policies, and the policies were
not always available online.
In June 2013, we sent Freedom of Information Law (FOIL) requests to the three New York City
charter school authorizers,3 all charter schools operating in NYC during the 2012-2013 school
year, and, to the extent possible, charter schools opening in NYC during the 2013-2014 school
year seeking, among other things, copies of their discipline policies. Charter schools are required
to comply with FOIL requests,4 and most charter schools responded. From the FOIL responses
and charter school websites, we were able to review 164 discipline policies from 155 of the 183
charter schools operating in NYC during the 2013-2014 school year.5 These discipline policies
came from large charter school networks as well as from small, independent charter schools.
From our review, we found:
(1) 107 of the 164 NYC charter school discipline policies we reviewed permit suspension or
expulsion as a penalty for any of the infractions listed in the discipline policy, no matter
how minor the infraction.
By contrast, the New York City Department of Education’s (DOE) Discipline Code aligns
infractions with penalties, limiting suspension to certain violations and prohibiting
expulsion for all students under age 17 and for all students with disabilities.6
New York charter schools operate independently from the school districts in which they are located. N.Y. EDUC. LAW § 2850(2)
(2014). These schools are exempt from most state and local laws, § 2854(1)(b), and are responsible for creating their own discipline
policies that meet certain legal requirements. See id. § 2851(2)(h).
3 The three charter school authorizers for New York City charter schools are the New York State Board of Regents, the Board of
Trustees of the State University of New York, and the Chancellor of the New York City Department of Education. See N.Y. EDUC. LAW
§ 2851(3). Currently, the New York City Department of Education does not have the authority to accept new charter applications, but
continues to be responsible for the existing charter schools that it authorized. See N.Y. EDUC. LAW §§ 2851(3), 2852(9), (9-a).
4 N.Y. EDUC. LAW § 2854(1)(e).
5 Seven charter schools provided multiple discipline policies, as they have different discipline policies for different grade levels.
6 In each section, we provide a comparison with the New York City Department of Education’s Discipline Code and Regulations of the
Chancellor. These regulations and policies do not apply to charter schools, but provide useful comparisons because they apply to the
vast majority of students in New York City. It is important to note that we do not uphold the DOE Discipline Code as a model. Indeed,
we are working with other advocates to reform the DOE Discipline Code so that it relies less on excluding students from school. While
we receive numerous calls from parents requesting assistance with suspensions from DOE district public schools, the vast majority of
those cases involve the implementation of the DOE’s regulations and policies rather than the illegality of the policies themselves.
2
February 2015 | 5
(2) 82 of the 164 NYC charter school discipline policies we reviewed permit suspension or
expulsion as a penalty for lateness, absence, or cutting class, in violation of state law.
(3) 133 of the 164 NYC charter school discipline policies we reviewed fail to include the right
to written notice of a suspension prior to the suspension taking place, in violation of state
law.
(4) 36 of the 164 NYC charter school discipline policies we reviewed fail to include an
opportunity to be heard prior to a short-term suspension, in violation of the U.S.
Constitution, New York State Constitution, and state law.
(5) 25 of the 164 NYC charter school discipline policies we reviewed fail to include the right
to a hearing prior to a long-term suspension, in violation of the U.S. Constitution, New
York State Constitution, and state law.
(6) 59 of the 164 NYC charter school discipline policies we reviewed fail to include the right
to appeal charter school suspensions or expulsions, even though state law establishes a
distinct process for charter school appeals.
(7) 36 of the 164 NYC charter school discipline policies we reviewed fail to include any
additional procedures for suspending or expelling students with disabilities, in violation
of federal and state law.
(8) 52 of the 164 NYC charter school discipline policies we reviewed fail to include the right
to alternative instruction during the full suspension period, in violation of state law.
While charter schools should be able to discipline their students, they must uphold the rights of
their students and provide them with a fair discipline process. The Charter Schools Act requires
charter school authorizers to ensure that charter applications include discipline policies and
procedures that comport with the law.7 Yet, all three authorizers of New York City charter
schools have approved charters for schools that have legally inadequate discipline policies.
The Charter Schools Act states: “An application for a charter school shall not be approved unless the charter entity finds that: (a) the
charter school described in the application meets the requirements set out in this article and all other applicable laws, rules and
regulation.” N.Y. EDUC. LAW § 2852(2). The charter school application must include discipline procedures. Id. § 2851(2)(h).
7
6 | Civil Rights Suspended
Based on these findings and our work assisting families in charter school
suspension and expulsion cases, we recommend:
(1) Charter school authorizers and the Board of Regents should ensure that charter school
discipline policies meet the requirements of the law and are aligned with federal
guidance. They should not approve or renew charter schools unless they have discipline
policies that comply with the law.
(2) The State Legislature should amend state law to affirm that charter schools must abide
by the requirements of Section 3214 of the New York Education Law and its
regulations, ending any perceived ambiguity in the law.
(3) The State Legislature should amend state law to include explicit standards for expelling
students to ensure that expulsions for all schools, including charter schools, are limited to
the most severe and dangerous behaviors in accordance with decisions of the New York
State Education Department (NYSED) Commissioner.
(4) The State Legislature should amend state law to require all public schools, including
charter schools, to provide full-time alternative instruction when students are suspended
or expelled. New York City district public school8 students are currently entitled to fulltime alternative instruction when they are suspended for more than five days.
(5) The State Legislature should amend state law to require charter schools to report
suspension and expulsion data. Charter school authorizers and the Board of Regents
should consider suspension and expulsion data, as well as student attrition data, in charter
school renewal applications.
(6) Because charter schools and the DOE both have responsibilities to students with
disabilities who face suspension or expulsion, charter school authorizers should
collaborate with the DOE to develop a memorandum of understanding delineating their
respective responsibilities to ensure that these students are receiving protections required by
federal and state law.
(7) Charter school authorizers and the Board of Regents, with input from parents, advocates,
and students, should develop a model discipline policy to provide guidance to charter
school leaders. In addition, authorizers should provide training for charter school leaders
and staff in suspension procedures, discipline of students with disabilities, and positive
approaches to discipline, such as restorative justice, peer mediation, social-emotional
learning, or positive behavior interventions.
8
We use the term “district public school” to refer to New York City public schools that are not charter schools.
February 2015 | 7
(8) Charter school authorizers and the Board of Regents should identify and promote best
practices and innovative, positive approaches to discipline, as encouraged by the U.S.
Departments of Education and Justice.
(9) NYSED should post the Education Commissioner’s charter school suspension and
expulsion appeal decisions on the NYSED website, alongside the district public school
appeal decisions that are already posted.
(10) The State Legislature should amend the Charter Schools Act to require all charter
schools to distribute their discipline policies to students and parents at the beginning of
the school year and post the policies on their websites along with contact information for
the appeals/grievance process.
We make these recommendations in recognition that suspension and expulsion can have
devastating consequences for the students involved. Suspended students are more likely to repeat
a grade,9 drop out of school,10 have increased behavioral problems in school,11 and come into
contact with the juvenile justice system.12 This data is particularly troubling because, nationally
and locally, African American students and students with disabilities are suspended from school at
rates disproportionate to their peers.13 One year ago, the federal government called upon all
public schools to curb reliance on suspension, expulsion, and zero tolerance policies and to
increase use of positive interventions, such as conflict resolution, counseling, and other inclusive
approaches to discipline, to address suspension disparities and to minimize the negative impact of
suspension on students.14 Improving school discipline in these ways is integral to creating highquality public schools, including charter schools, that work for students, teachers, and school
communities.
T. Fabelo et al., COUNCIL OF STATE GOV’TS JUSTICE CTR., BREAKING SCHOOLS’ RULES: A STATEWIDE STUDY OF HOW SCHOOL DISCIPLINE
RELATES TO STUDENTS’ SUCCESS AND JUVENILE JUSTICE INVOLVEMENT 54 (2011), available at http://csgjusticecenter.org/wpcontent/uploads/2012/08/Breaking_Schools_Rules_Report_Final.pdf.
10 Id.; see Linda M. Raffaele Mendez, Predictors of Suspension and Negative School Outcomes: A Longitudinal Investigation, 99 NEW DIRECTIONS
FOR YOUTH DEV. 17 (2003).
11 S.A. Hemphill et al., The Effect of School Suspensions and Arrests on Subsequent Adolescent Antisocial Behavior in Australia and the United
States, 39 J. ADOLESCENT HEALTH 736, 736-44 (2006).
12 Fabelo, supra note 9, at 61.
13 See U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, DATA SNAPSHOT: SCHOOL DISCIPLINE (Mar. 2014), available at
http://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf; N.Y. CIVIL LIBERTIES UNION, STUDENT SAFETY ACT REPORTING
ON SUSPENSIONS 2013-2014 (2014), available at http://www.nyclu.org/files/ssa_suspension_factsheet_2013-2014.pdf.
14 See U.S. DEP’T OF EDUC., GUIDING PRINCIPLES: A RESOURCE GUIDE FOR IMPROVING SCHOOL CLIMATE AND DISCIPLINE (Jan. 2014), available at
http://www2.ed.gov/policy/gen/guid/school-discipline/guiding-principles.pdf; see also U.S. DEP’T OF EDUC. & U.S. DEP’T OF JUSTICE, DEAR
COLLEAGUE LETTER: NONDISCRIMINATORY ADMINISTRATION OF SCHOOL DISCIPLINE (Jan. 8, 2014), available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf.
9
8 | Civil Rights Suspended
We are often asked which laws charter schools must follow when disciplining students. Here is a
list of certain key provisions, but it is not a comprehensive list of the laws that charter schools
must follow. The requirements of some of these laws will be discussed in more detail later in the
report.
Charter schools must comply with the U.S. Constitution and federal statutes and regulations.15
U.S. Constitution
In 1974, in the landmark case of Goss v. Lopez, the U.S. Supreme Court established that
suspending students from school without first providing them with notice and an opportunity to
be heard violated the Due Process Clause of the 14th Amendment of the Constitution.16 While
the Court was addressing suspensions of ten days or less, the Court also noted that longer
suspensions or expulsions may require more formal due process procedures.17 Since there are no
federal statutes or regulations that govern the process of suspending students, the Goss decision is
the federal guidepost for minimum due process requirements for student suspensions.
Individuals with Disabilities Education Act (IDEA)18
and Section 504 of the Rehabilitation Act19
These federal statutes and their implementing regulations include requirements that schools
provide additional protections to students with disabilities when disciplining them.
Charter schools must comply with the New York State Constitution. Charter schools must meet
the same health and safety, civil rights, and student assessment requirements applicable to other
public schools except as provided in the Charter Schools Act.20 Charter schools are exempt from
all other state and local laws and regulations except as provided in the Charter Schools Act.21
See N.Y. EDUC. LAW § 2854(1)(b).
Goss v. Lopez, 419 U.S. 565, 581 (1975).
17 Id. at 584.
18 20 U.S.C. §§ 1400-1482 (2014); 34 C.F.R. Part 300 (2014).
19 29 U.S.C. § 794; 34 C.F.R. Part 104.
20 N.Y. EDUC. LAW § 2854(1)(b).
21 Id.
15
16
February 2015 | 9
New York State Constitution
Similarly to the United States Constitution, the New York State Constitution includes a Due
Process Clause.22
New York State Charter Schools Act (Charter Schools Act)23
This law governs the requirements for charter schools. When it comes to discipline, charter
school applications must include “rules and procedures by which students may be disciplined,
including but not limited to expulsion or suspension from the school, which shall be consistent
with the requirements of due process and with federal laws and regulations governing the
placement of students with disabilities.”24 The Charter Schools Act also states that the
exemptions of charter schools from the requirements of state law shall not affect “the
requirements of compulsory education of minors established by part one of article sixty-five [of
the Education Law].”25 Part one of article sixty-five, entitled “Compulsory Education,” includes
Section 3214, which sets forth due process requirements for school suspensions.26
New York State Education Law Section 321427
This state law governs student suspension. The law codifies the Goss v. Lopez decision by setting
out the due process requirements and procedures that New York public schools must follow
when seeking to suspend a student from school. Section 3214 and its implementing regulations
include a set of procedures for students facing suspensions of five days or less and an additional
set of procedures for students facing suspensions of more than five days. 28 It also includes
procedures regarding disciplining students with disabilities, in line with the federal laws mentioned
above.29
Court decisions interpreting these federal and state provisions are also applicable. Furthermore,
the Commissioner of the New York State Education Department (Education Commissioner) is
N.Y. CONST. art. I, § 6 (2014) (“No person shall be deprived of life, liberty or property without due process of law.”).
N.Y. EDUC. LAW §§ 2850-2857.
24 Id. § 2851(2)(h).
25 Id. § 2854(1)(b).
26 See N.Y. EDUC. LAW, art. 65.
27 Id. § 3214. Some charter school advocates have claimed that Section 3214 does not apply to charter schools, citing the provision of
the Charter Schools Act that states that charter school applications must include “rules and procedures by which students may be
disciplined, including but not limited to expulsion or suspension from the school, which shall be consistent with the requirements of due
process and with federal laws and regulations governing the placement of students with disabilities.” Id. § 2851(2)(h). However, this
argument ignores the facts that the Charter Schools Act explicitly states that the state law exemption does not affect part one of article
65 (where Section 3214 is contained) and that New York’s “requirements of due process” for suspensions are found in Section 3214. In
2011, a group of legal service organizations wrote to the State Education Department, which, in response, confirmed that the State
expects charter schools, at a minimum, to meet the requirements of Section 3214. Given the argument that some charter school
advocates have made, we recommend that the State Legislature end any perceived ambiguity by amending state law to clarify that Section
3214 applies to charter schools. Nevertheless, we note that most of our key findings do not rest solely on the applicability of Section
3214 to these schools.
28 See id. § 3214(3); N.Y. COMP. CODES R. & REGS. tit. 8, § 100.2(l) (2014).
29 N.Y. EDUC. LAW § 3214(3)(g). In addition to establishing protections for students with disabilities, Section 3214 also references article
89 of the New York State Education Law. The state regulations implementing the laws regarding discipline for students with disabilities
are found in N.Y. COMP. CODES R. & REGS. tit. 8, Part 201.
22
23
10 | Civil Rights Suspended
authorized to decide discipline appeals from district public schools30 and from charter schools.31
As a result, the Education Commissioner has issued decisions further clarifying the requirements
that schools must follow when seeking to suspend or expel students.
Although the New York City Department of Education (DOE) Discipline Code and Chancellor’s
Regulations do not apply to charter schools, these policies provide an important point of
comparison because they govern school discipline for the vast majority of New York City
students.
See N.Y. EDUC. LAW § 310. The Education Commissioner’s decisions for district school suspension cases are available online at
http://www.counsel.nysed.gov/Decisions/dcommissionersdecisions.
31 N.Y. EDUC. LAW § 2855(4); N.Y. COMP. CODES R. & REGS. tit. 8, § 3.16(a); see G.L. v. King, No. 695-12 (N.Y. Sup. Ct. Sept. 18, 2012).
The Education Commissioner’s decisions for charter school suspension cases are not available online.
30
February 2015 | 11
• 107 of the 164 NYC charter school discipline policies we reviewed permit
suspension or expulsion as a penalty for any of the infractions listed in the discipline policy,
no matter how minor the infraction.
What’s Required
In deciding suspension appeal cases, the New York State Commissioner of Education has
explained repeatedly that disciplinary penalties imposed on students must be proportionate to the
severity of the student’s misconduct.32 The Education Commissioner has also explained that
permanent suspension or expulsion from school is “an extreme penalty that is generally
educationally unsound except under extraordinary circumstances, such as where the student
exhibits ‘an alarming disregard for the safety of others’ and where it is necessary to safeguard the
well-being of other students.”33
Furthermore, guidance from the federal Department of Education explains that school discipline
policies should define offense categories and ensure that “clear, developmentally appropriate, and
proportional consequences apply for misbehavior.”34 As the guidance explains: “Developmentally
appropriate consequences take into account the developmental differences of students at various
stages of childhood and adolescence, as well as the cognitive and emotional maturity of the
students served. Proportional consequences generally involve disciplinary responses that match
the severity of the consequences to the severity of the behavior violation, with mild consequences
being used for minor offenses, and harsher consequences – including, in particular, exclusionary
discipline – being used as a last resort and only for the most serious infractions.”35 This alignment
of infractions with ranges of penalties helps to ensure that students receive a fair, proportionate
penalty for their conduct, as required by law. Furthermore, discipline policies with graduated
penalties provide guidance to decision-makers, schools, parents, and students on what constitutes
a proportionate penalty and puts parents and students on notice as to the possible punishments
that students may face based on their misconduct.
NYC DOE Discipline Policy
The NYC DOE Discipline Code divides infractions into five levels of misconduct, provides a
range of possible penalties for each infraction, and places limits on the use of certain penalties for
See, e.g., Appeal of T.C., 47 N.Y. Educ. Dep’t Rep., Decision No. 15,697 (2007); Appeal of Harlan, 40 N.Y. Educ. Dep’t Rep., Decision No.
14,488 (2000); Appeal of Mace, 40 N.Y. Educ. Dep’t Rep., Decision No. 14,433 (2000).
33 Appeal of Dale C., 40 N.Y. Educ. Dep’t Rep., Decision No. 14,423 (2000) (internal citations omitted).
34 U.S. DEP’T OF EDUC., GUIDING PRINCIPLES: A RESOURCE GUIDE FOR IMPROVING SCHOOL CLIMATE AND DISCIPLINE 13 (Jan. 2014), available at
http://www2.ed.gov/policy/gen/guid/school-discipline/guiding-principles.pdf.
35 Id. at 14.
32
12 | Civil Rights Suspended
certain infractions.36 For example, lower level infractions, such as failing to wear the required
school uniform, making noise in the hallway, or failing to be in one’s assigned place, may result in
a parent conference or loss of extracurricular privileges for a student, rather than suspension from
school.37 The NYC DOE Discipline Code authorizes more severe penalties for students,
including short-term and long-term suspensions, as students get older and as they commit higher
level infractions.38 The NYC DOE Discipline Code permits expulsion from school only for the
most severe infractions and only for general education students who were at least 17 years old at
the start of the school year.39
NYC Charter School Policies
Similarly to the NYC DOE Discipline Code, many of the charter school policies we reviewed
align infractions with a range of penalties. However, 107 of the charter school discipline policies
that we reviewed do not align infractions with specific disciplinary responses and allow for
suspension or expulsion for any violation of the code of conduct. Such discipline policies, on their
face, allow schools to impose the same punishment on a student who chews gum in class as on a
student who uses a weapon to cause serious injury to a classmate. Furthermore, such discipline
policies ostensibly allow schools to impose vastly different punishments on two similarly situated
students who engage in the same misconduct, increasing the likelihood of results that are biased
and unfair. Some of the policies we reviewed gave school staff unbridled discretion to impose
suspensions of any length and even expulsion for infractions as minor as chewing gum, drinking
soda, bringing a phone to school, littering, lying, and using an elevator without permission, and
for infractions as vague as engaging in “unacceptable behavior” and “refusing accountability.”
Indeed, AFC has assisted parents whose children were suspended from their charter schools for
minor misconduct, such as laughing during detention, holding on to the teacher’s leg, walking out
of the classroom to use the bathroom, and wearing the wrong shoes. By addressing these
infractions through suspensions instead of by other means, schools forced these students to miss
valuable instructional time.
It is particularly concerning that 107 charter school discipline policies allow schools to impose
expulsion as a penalty for any infraction for students of any age. When charter schools expel
students, the district public schools are required to admit them and serve them. Thus, expulsion
for low-level infractions gives charter schools a way to send students they find difficult back to
district public schools, making students’ punishment for violating a charter school rule a one-way
ticket to a district public school.40
See N.Y.C. DEP’T OF EDUC., CITYWIDE STANDARDS OF INTERVENTIONS AND DISCIPLINE MEASURES (Sept. 2013) (hereinafter referred to as
“N.Y.C. D.O.E. DISCIPLINE CODE”), available at http://schools.nyc.gov/NR/rdonlyres/188AF3E2-F12B-4754-8471F2EFB344AE2B/0/DiscCodebooklet2013final.pdf.
37 See id. at 17 and 23.
38 See id. at 5, 17-29.
39 See id. at 15, 27, 28, 29.
40 The Charter Schools Act allows charter schools to refuse admission to a student who has been expelled or suspended from a district
public school until the period of suspension from the public school has expired. N.Y. EDUC. LAW § 2854(2)(d). The law does not permit
district public schools to refuse admission to a student who has been expelled or suspended from a charter school.
36
February 2015 | 13
JARVUS is a student diagnosed with Attention Deficit
Hyperactivity Disorder (ADHD). Last year, when Jarvus
was ten years old, he attended a charter school that had
a policy of suspending students when they accumulated
demerits. Jarvus received demerits for behaviors such as
calling out in class, leaving his seat without permission,
and talking back to staff, and therefore, Jarvus’s charter
school suspended him multiple times. Eventually, the
charter school developed a behavior intervention plan to
help address Jarvus’s behaviors in class rather than
excluding him from class. By that time, however, Jarvus
had already missed more than twenty days of school.
PEYTON is a charter school
student diagnosed with
Attention Deficit Hyperactivity
Disorder (ADHD). When he was
in fifth grade, his charter school
sought to expel him because he
threw a bag of food on the floor
and then swept it up with a
“bad attitude” and because he
had three previous suspensions
for relatively minor misbehavior.
JEREMIAH attended a charter
school with a strict discipline
policy. When Jeremiah was in the
fifth grade, he received detention
for behaviors such as talking
while standing in line, playing
with his pencil, not following
directions, and failing to
complete his homework on time.
The charter school principal met
with his mother and informed her
that unless she withdrew him
from the charter school, the
school would expel him. The
charter school never informed
Jeremiah’s mother of the
expulsion process or her rights.
Feeling like she had no choice,
Jeremiah’s mother withdrew him
from the charter school and
enrolled him in his zoned school.
14 | Civil Rights Suspended
The cases in which we have assisted parents whose
children faced expulsion from their charter schools
include: a seven-year-old student with a disability who took
a small car part resembling a LEGO piece from another
student and refused to let go of it when asked by a staff
member; a ten-year-old student with a disability with no
prior suspensions who stated he wished he could throw a
bomb at the school; and an eleven-year-old who lived in a
homeless shelter, had no prior suspensions, and sent one
e-mail with inappropriate language to a classmate.
The State does not make publicly available the number of
students who have been expelled from charter schools.
Even if this figure were available, it would mask the true
impact of lax charter school expulsion policies. We have
heard from parents whose charter schools threatened to
expel the student if the parent did not withdraw the
student from the school. These charter schools told these
parents that they could avoid having an expulsion in their
children’s records only by withdrawing them from their
charter schools. The schools encouraged the parents to
withdraw their children even when the schools had not
conducted expulsion hearings and even when the students’
misconduct had not shown “an alarming disregard for the
safety of others”—the State’s standard for determining
whether expulsion is an appropriate penalty for a student’s
behavior. The charter schools were able to threaten
expulsion based on the schools’ discipline policies that
allowed for expulsion for any infraction.
To ensure that students receive a proportionate and fair penalty for their conduct, charter school
discipline policies should include a graduated list of infractions aligned with penalties from least to
most severe and should place limits on the use of suspension for minor infractions. The policies
should prohibit expulsion except for the most severe and dangerous misconduct that shows “an
alarming disregard for the safety of others.”
• 82 of the 164 NYC charter school discipline policies we reviewed permit
suspension or expulsion as a penalty for lateness, absence, or cutting class, in violation of
state law.
What’s Required
Under Section 3214 of the New York State Education Law, only a student who is “insubordinate
or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals,
health or welfare of others” may be suspended or expelled from school.41 The New York State
Supreme Court and the Education Commissioner have held that schools may not suspend
students for being late or absent or for cutting class.42 Schools may take other actions to address
truancy, but may not resort to suspensions or expulsions.
The Education Commissioner has explained that suspending a student for truant behavior is not
only illegal; it is also poor educational policy.43 As the Education Commissioner has explained:
“[A] policy that addresses nonattendance by suspending a student’s right to attend school sends a
logically inconsistent message to school-age children.”44 Indeed, when the problem is that a
student is failing to go to class on time or at all, prohibiting the student from attending class fails
to teach the student the importance of being present for instruction.
NYC DOE Discipline Policy
The NYC DOE Discipline Code does not allow suspension or expulsion as penalties for lateness,
absence, or skipping class.45 In cases of truancy, school personnel must meet with the student and
parent to determine needed supports and an appropriate course of action. 46
N.Y. EDUC. LAW § 3214(3)(a).
See Blackman v. Brown, 100 Misc. 2d 566, 568 (N.Y. Sup. Ct. 1978) (explaining that truancy does not fit into any of the categories of
authorized suspensions under § 3214(3)); Appeal of Ackert, 30 N.Y. Educ. Dep’t Rep. 31, 33 (1990) (holding that “a student may not be
suspended, expelled or dropped from school attendance for truancy”); Appeal of Hynds, 34 N.Y. Educ. Dep’t Rep., Decision No. 13,407
(1995) (invalidating school policy of suspending student from class for lateness or nonattendance); Appeal of Strada, 34 N.Y. Educ. Dep’t
Rep., Decision No. 13,434 (1995) (invalidating school policy by which student with four absences could be removed from class and
assigned to study hall on basis that it results in suspension of student from class due to truancy); Appeal of Vitello, 32 N.Y. Educ. Dep’t
Rep., Decision No. 12,813 (1992) (invalidating school policy of suspending student from class for cutting that class).
43 See Appeal of Hynds, 34 N.Y. Educ. Dep’t Rep., Decision No. 13,407 (1995).
44 Id.
45 N.Y.C. D.O.E. DISCIPLINE CODE at 3, 17, 23.
46 Id. at 3.
41
42
February 2015 | 15
NYC Charter School Policies
While many charter school discipline policies prohibit
suspension or expulsion as penalties for lateness, absence,
or skipping class, half (82) of the charter school discipline
policies we reviewed allow for suspension or even
expulsion for being late to class or absent from class or
skipping class.
AFC has assisted parents whose children faced suspension
or expulsion for lateness or absence based on these
discipline policies.
Charter school discipline policies must be revised to ensure
that they do not allow suspension or expulsion as penalties
for lateness, absence, or cutting class. Furthermore, charter
school authorizers should strongly encourage charter
schools to use guidance interventions, not only penalties,
with students who exhibit truant behaviors.
The Charter Schools Act requires charter schools to have
discipline policies that include procedures “consistent with
the requirements of due process.”47 In the landmark case
of Goss v. Lopez, the U.S. Supreme Court held that the Due
Process Clause of the Constitution prohibits schools from
suspending students from school, even for a short period
of time, without first providing them with notice and the
opportunity to be heard.48 The Court found that these
procedures are necessary because schools can make
mistakes in the disciplinary process and it is important to
protect students against suspensions that are unwarranted.
As the Court stated: “Disciplinarians, although proceeding
in utmost good faith, frequently act on the reports and
advice of others; and the controlling facts and the nature of
the conduct under challenge are often disputed.”49
N.Y. EDUC. LAW § 2851(2)(h).
See Goss, 419 U.S. at 573-74, 581-584.
49 Id. at 580.
47
48
16 | Civil Rights Suspended
GARNETT was in the middle
of his last year at his charter
school when the school
sought to expel him. The
charges against Garnett were
that he was late to class four
times without excuse, absent
from school on three days
without excuse, skipped a
class, and failed to have
teachers sign a selfevaluation chart. The charter
school’s policy gave the
school the discretion to use
any penalty listed, including
suspension or expulsion, to
address any of the listed
infractions, which included
absence and lateness.
Following an expulsion
hearing, the school suspended
Garnett for the remainder of
the school year, providing
him with only two hours of
instruction per day for the
rest of his time at the school.
In other words, for missing
the equivalent of four days of
school, Garnett’s punishment
was to miss four months of
school.
New York State Education Law Section 3214 codifies the Goss v. Lopez decision by setting out the
due process requirements and procedures that New York public schools must follow when
seeking to suspend a student from school.50
• 133 of the 164 NYC charter school discipline policies we reviewed fail to
include the right to written notice of a suspension prior to the suspension taking place, in
violation of state law.
What’s Required
Federal and state law requires schools to provide notice before a student is suspended from
school.51 In Goss v. Lopez, the U.S. Supreme Court explained that schools must provide oral or
written notice of the charges against a student and the basis for the accusation prior to even a
short-term suspension.52 If the student’s presence poses a continuing danger to people or
property or an ongoing threat of disrupting the academic process, only then may a school remove
a student immediately.53 In such cases, the school must provide the student with notice of the
charges as soon as possible after the student starts the suspension. 54
Similarly, Section 3214 requires schools to provide notice of the charged misconduct, even in the
case of short-term suspensions.55 The implementing regulations of Section 3214 provide
additional detail requiring schools to give parents written notice of a proposed suspension,
including a description of the underlying incident.56 The regulations require schools to send
notice to the parent in the parent’s dominant language within 24 hours of the decision to
recommend suspension using a method “reasonably calculated to assure receipt.”57 Schools
should provide parents with oral notification in addition to written notice of a proposed
suspension,58 but oral notice cannot be a substitute for written notice. 59 Schools must provide the
notice of a proposed suspension prior to the actual suspension unless the student’s presence in
school presents a continuing danger to people or property or ongoing threat of disruption to the
academic process, in which case notice should be provided as soon as practicable after the
suspension begins.60 If a school recommends a suspension of more than five days, Section 3214
requires the school to provide the student and parent with reasonable notice of the opportunity
for a hearing and their rights at that hearing, including fair notice of the charges against the
student, so that the parent and student can prepare for the hearing.61
N.Y. EDUC. LAW § 3214(3).
Goss, 419 U.S. at 581-83; N.Y. EDUC. LAW §§ 3214(3)(b), (c).
52 Goss, 419 U.S. at 581.
53 Id. at 581-83.
54 Id.
55 N.Y. EDUC. LAW § 3214(3)(b)(1).
56 N.Y. COMP. CODES R. & REGS. tit. 8, § 100.2(l)(4).
57 Id.
58 Id.
59 Id.; Appeal of B.L.G., 50 N.Y. Educ. Dep’t Rep., Decision No. 16,101 (2010).
60 N.Y. EDUC. LAW § 3214(3)(b)(1).
61 Id. § 3214(3)(c)(1); Bd. of Educ. of Monticello Cent. Sch. Dist. v. Comm’r of Educ., 91 N.Y.2d 133, 139-40 (N.Y. App. Div.1997).
50
51
February 2015 | 17
NYC DOE Discipline Policy
The NYC DOE Chancellor’s Regulations have far more detailed
notice requirements than the state law and regulations for
proposed short-term and long-term suspensions.62 For example,
for proposed suspensions of more than five days, Chancellor’s
Regulation A-443 includes a list of more than 20 items that the
DOE is required to include in the written suspension notice
including the specific reasons for the suspension; the alternative
instruction arrangements for the student; the date, time, and place
of the suspension hearing; a list of rights that the student and
parent have at the hearing; and a list of agencies providing free or
low-cost assistance at suspension hearings.63
NYC Charter School Policies
While some charter school discipline policies require the schools to
provide written notice of a proposed suspension or expulsion, 133
of the NYC charter school discipline policies we reviewed fail to
include the right to written notice of a suspension prior to the
suspension taking place.
We have received calls from parents who have not received written
notice of a proposed suspension. Instead, the charter schools in
these cases called the parents to inform them that the school would
be suspending their child. Sometimes, parents were unsure about
the charges leading to the suspension because they had not
received written or even oral notification of the specific charge.
They were informed merely that their children were suspended and
could not attend school. We have had cases in which charter
schools failed to provide written notice even where the charter
school was proposing a long-term suspension or expulsion.
All charter school discipline policies should require schools to
provide parents and students with advanced written notice of a
proposed suspension of any length or expulsion, including the
charge and information about their rights, prior to the suspension
or expulsion taking place, or as soon as practicable after the
suspension has begun if exigent circumstances exist.
See N.Y.C. DEP’T OF EDUC., REGULATION OF THE CHANCELLOR A-443 (hereinafter referred to
as “N.Y.C. D.O.E. CHANCELLOR’S REG. A-443”) §§ III.B.2(j)-(k), III.B.3(n) (2004), available at
http://schools.nyc.gov/NR/rdonlyres/E711B08E-B149-49DA-BCFA9BAF174F0096/0/A4433504Combined.pdf.
63 See N.Y.C. D.O.E. CHANCELLOR’S REG. A-443 § III.B.3(n).
62
18 | Civil Rights Suspended
TYRONE’s mother
received a text message
from the principal of
Tyrone’s charter school
asking if she was
available to meet with
him for an hour the
following school day.
When Tyrone’s mother
arrived at the school,
she was surprised to
learn that the charter
school wanted to expel
her son and that the
“meeting” was actually
for the purpose of
expelling Tyrone. At the
end of the meeting, the
school’s superintendent
informed Tyrone’s
mother that she could
withdraw him from
school to avoid his
expulsion.
• 36 of the 164 NYC charter school discipline policies we reviewed fail to
include an opportunity to be heard prior to a short-term64 suspension, in violation of the
U.S. Constitution, New York State Constitution, and state law.
What’s Required
In Goss v. Lopez, the U.S. Supreme Court explained that, if a student facing suspension denies the
charges, the school must provide an explanation of the school’s evidence and an opportunity for
the student to present his or her side of the story prior to suspension from school.65 If the
student’s presence poses a continuing danger to people or property or an ongoing threat of
disrupting the academic process, only then may a school remove a student immediately. 66 In such
cases, the school must provide the student with this opportunity to be heard as soon as possible
after the student starts the suspension.67
Under Section 3214 and its implementing regulations, prior to a suspension of one to five days,
schools must inform students and parents of their opportunity to request an informal conference
with the principal, at which the student and parent have a right to present their version of the
incident and question witnesses.68 Similar to the requirement for notice, the conference must take
place prior to the suspension unless the student poses a continuing danger to people or property
or an ongoing threat of disruption to the academic process, in which case the conference should
take place as soon as practicable after the suspension begins.69
NYC DOE Discipline Policy
For suspensions of five days or less, the DOE Chancellor’s Regulations require the principal to
hold a conference with the parent and student and include more detailed requirements than state
law and regulations regarding this opportunity to be heard.70 The conference is an opportunity to
discuss the facts surrounding the incident; “determine whether or not a suspension is justified;
devise collaboratively satisfactory solutions for the student’s return to his/her program; and
prevent further disruption of the student’s education.”71
NYC Charter School Policies
While most of the charter school discipline policies that we reviewed include an opportunity to be
heard prior to a short-term suspension, 36 of the discipline policies we reviewed fail to include an
opportunity to have an informal conference with the principal, or any opportunity to be heard,
prior to a short-term suspension, in violation of the law.
Some charter school discipline policies define a short-term suspension as a suspension of five days or less. Others define a short-term
suspension as a suspension of ten days or less. The numbers referenced in this section reflect the schools’ policies for short-term
suspensions, however defined.
65 Goss, 419 U.S. at 581-83.
66 Id.
67 Id.
68 N.Y. EDUC. LAW § 3214 3(b)(1); N.Y. COMP. CODES R. & REGS. tit. 8, § 100.2(l)(4).
69 N.Y. EDUC. LAW § 3214(3)(b)(1); N.Y. COMP. CODES R. & REGS. tit. 8, § 100.2(1)(4).
70 N.Y.C. D.O.E. CHANCELLOR’S REG. A-443 § III.B.2.
71 Id. § III.B.2(l).
64
February 2015 | 19
OMAR’s charter school suspended him from school for four days for horse playing with another
student and talking back to a teacher. The school’s discipline policy stated that parents would
receive written notice when the school proposed a suspension of five days or more, but did not
require the school to provide written notice for shorter suspensions. The discipline policy also
failed to include the right to an informal conference with the principal for students facing shortterm suspensions. Omar’s mother did not receive written notice of his suspension from school or an
opportunity for a conference. The principal called her one evening and simply told her that Omar
was suspended for the next four school days.
Many of the parents who have contacted AFC about charter school suspensions were not given an
opportunity to meet with the charter school or to present their version of events or question
witnesses regarding their children’s short-term suspension. They were told simply that the student
was being suspended or were invited to attend a meeting prior to reinstatement.
Charter school discipline policies should require schools to provide parents and students with the
opportunity for an informal conference with the principal where they may question witnesses,
present their version of events, and disagree with the recommended penalty before the start of the
short-term suspension, or as soon as practicable after the suspension has begun if exigent
circumstances exist.
• 25 of the 164 NYC charter school discipline policies we reviewed fail to
include the right to a hearing prior to a long-term72 suspension, in violation of the U.S.
Constitution, New York State Constitution, and state law.
What’s Required
In Goss v. Lopez, the U.S. Supreme Court was addressing an Ohio statute concerning suspensions
of ten days or less.73 The Court explained that the more severe the proposed suspension, the
more formal the due process that schools must provide to students, and noted that longer
suspensions or expulsions may require more formal procedures.74 In keeping with this general
guidance, prior to suspending students for more than five days, Section 3214 requires schools to
provide students and parents with an opportunity for a formal hearing where they may be
represented by counsel, question witnesses, and present evidence, including witnesses, on the
students’ behalf.75 A federal district court in New York has also held that students and parents
have the right to review evidence prior to a disciplinary hearing in order to prepare an adequate
defense to the charges against the students.76 At the hearing, the school must prove through
Although Section 3214 prohibits schools from suspending a student for more than five days without the opportunity for a hearing, the
numbers in this section apply to long-term suspensions even if charter schools defined long-term suspensions as suspensions of more
than ten days.
73 Goss, 419 U.S. at 567-68, 584.
74 Id. at 576, 584.
75 N.Y. EDUC. LAW § 3214(3)(c)(1).
76 Ross v. Disare, 500 F. Supp. 928, 934 (S.D.N.Y. 1977).
72
20 | Civil Rights Suspended
competent and substantial evidence that the student participated in the charged misconduct. 77
The hearing must be recorded, and a hearing officer must make findings of fact and
recommendations as to the appropriate measure of discipline.78
NYC DOE Discipline Policy
The DOE Chancellor’s Regulations require district public schools seeking to suspend a student
for more than five days to provide parents with the right to have a hearing before a hearing officer
at an independent DOE office and include more detailed procedures than the state law and
regulations regarding these hearings.79 At the hearing, the parent and student have the right to be
represented by an attorney, question witnesses, and present evidence. 80 In addition, among other
rights, they have the right to review, in advance, the evidence the school intends to present at the
hearing, including a list of the names of potential witnesses.81
NYC Charter School Policies
While most of the charter school discipline policies we reviewed include the right to a hearing for
students facing long-term suspensions, 25 of the charter school discipline policies that we
reviewed do not include the right to a hearing prior to a long-term suspension.
Of the charter school discipline policies that include the right to a hearing prior to a long-term
suspension, a number of policies fail to include all of the rights outlined in Section 3214. For
example, 15 policies that include the right to a hearing fail to include the right to question
witnesses and 14 policies fail to include the right to present evidence at the hearing.
Furthermore, a number of policies that we credited as including the right to a hearing for students
facing long-term suspension provide for a hearing only when students face suspensions of more
than ten days, in violation of Section 3214, which requires a hearing when students face
suspensions of more than five days.
Unlike DOE district public school suspension hearings, which have independent hearing officers
with experience in suspension procedures, charter schools often have a member of the charter
school staff preside over the hearing. Thus, detailing the required hearing procedures in the
charter school’s discipline policy is particularly important to provide guidance to parents, students,
and charter school staff.
AFC has represented parents whose children did not receive adequate due process prior to a longterm suspension or expulsion from their charter schools. We have heard from parents who were
merely told, without any explanation of the right to due process, that their children were no longer
Bd. of Educ. of Monticello Cent. Sch. Dist. v. Comm’r of Educ., 91 N.Y.2d 133, 140-41 (N.Y. App. Div.1997); Bd. of Educ. of the City Sch. Dist.
of the City of N.Y. v. Mills, 293 A.D.2d 37, 39 (N.Y. App. Div. 2002).
78 N.Y. EDUC. LAW § 3214(3)(c)(1).
79 See N.Y.C. D.O.E. CHANCELLOR’S REG. A-443 § III.B.3.
80 Id §§ III.B.3(n)(12), (15).
81 Id. §§ III.B.3(n)(6), (7), (14).
77
February 2015 | 21
DAVID is a student with a disability at a
charter school. His charter school suspended
him by sending a notice home to his mother
stating that her son was suspended and could
not return to school for 30 days. There was no
opportunity for a hearing. In violation of the
law, the school’s discipline policy allows the
school to suspend students, without advanced
notice or a hearing, for up to 30 days upon
approval of the school leader.
allowed to attend the charter school or encouraged to withdraw their children from the school to
avoid expulsion. We have also heard from parents whose schools held a meeting where the
school leader simply informed the parent that the student would be suspended or expelled. There
was no presentation of the school’s evidence and no opportunity for the parent or student to
question witnesses or present his or her own evidence.
Charter school discipline policies should require schools to provide parents and students with the
opportunity for a hearing prior to a suspension of more than five days with all of the rights and
procedures outlined above.
• 59 of the 164 NYC charter school discipline policies we reviewed fail to
include the right to appeal charter school suspensions or expulsions, even though state law
establishes a distinct process for charter school appeals.
What’s Required
Parents and students may appeal charter school suspensions and expulsions.82 In 2012, the New
York State Supreme Court held that parents or students seeking to appeal a charter school
suspension decision must follow the grievance procedure set out in the Charter Schools Act.83
This process requires parents wishing to appeal charter school suspension or expulsion decisions
to submit a complaint to the charter school’s Board of Trustees, and then, if not adequately
addressed, to the charter school’s authorizer, and then, if not adequately addressed, to the Board
of Regents.84 The Board of Regents has delegated to the Education Commissioner its authority to
investigate and respond to charter school grievances.85
NYC DOE Discipline Policy
The suspension appeals process for students in district public schools differs from the process for
students in charter schools because the Charter Schools Act outlines a distinct process for charter
See N.Y. EDUC. LAW § 2855(4); see G.L. v. King, No. 695-12 (N.Y. Sup. Ct. Sept. 18, 2012).
G.L. v. King, No. 695-12 (N.Y. Sup. Ct. Sept. 18, 2012).
84 N.Y. EDUC. LAW § 2855(4).
85 N.Y. COMP. CODES R. & REGS. tit. 8, § 3.16(a); see G.L. v. King, No. 695-12 (N.Y. Sup. Ct. Sept. 18, 2012).
82
83
22 | Civil Rights Suspended
school complaints. The DOE Chancellor’s Regulations on
school discipline require the written notice to parents about
proposed short-term and long-term suspensions to include
the right to appeal the suspension decision.86 The
Chancellor’s Regulations include the address for the DOE’s
Office of Legal Services,87 and the sample suspension
notices in the Chancellor’s Regulations also include contact
information.88 The DOE Discipline Code includes the
right to appeal, directs parents to the applicable
Chancellor’s Regulations for more information about the
appeals process, and provides the website for the
Chancellor’s Regulations.89
NYC Charter School Policies
Although the New York State Supreme Court has made
clear the appeals process that parents must follow in charter
school suspension or expulsion cases, the vast majority of
charter school discipline policies do not include a complete
and accurate description of this process. Fifty-nine of the
164 charter school discipline policies that we reviewed do
not discuss a suspension appeals process at all. Only 20 of
the 164 charter school discipline policies that we reviewed
have an accurate and complete description of the appeals
procedure outlined in the Charter Schools Act.
We have received calls from parents who want to challenge
a charter school suspension or expulsion decision but do
not know the process for doing so. Moreover, we have
found that contact information for the Board of Trustees is
rarely provided to parents and students, making it difficult
for parents to exercise their right to appeal even when the
school’s discipline policy explains that right.
Charter school discipline policies should explain the right to
appeal and outline the appeals process, including contact
information for each level of appeal.
N.Y.C. D.O.E. CHANCELLOR’S REG. A-443 §§ III.B.2(k), III.B.3(n)(23).
Id. §§ IV.A.1 n.17; IV.B.1; IV.B.3 n.18; VI.
88 Id. Appendix C, Appendix E, Appendix F.
89 N.Y.C. D.O.E. DISCIPLINE CODE at 15.
86
87
ELAINE’s mother contacted
AFC because she wanted to
appeal the charter school’s
decision to expel her
daughter from school for
making an inappropriate
comment about another
student. The charter school
had been the only school
Elaine had ever attended. The
charter school’s discipline
policy stated that parents
could appeal expulsion
decisions pursuant to the
grievance procedure in the
Charter Schools Act, but the
discipline policy failed to
explain this procedure. The
school’s expulsion decision
letter stated that Elaine’s
mother could appeal the
decision by writing to the
school’s Board of Trustees,
but the letter failed to
provide names and contact
information for the Board
members. The school’s
website did not list contact
information for the Board of
Trustees; nor was this
information provided in the
school’s family handbook.
February 2015 | 23
• 36 of the 164 NYC charter school discipline policies reviewed fail to include
any additional procedures for suspending or expelling students with disabilities, in violation
of federal and state law.
What’s Required
Federal and state law prohibits schools, including charter schools, from discriminating against
students with disabilities. When it comes to discipline, federal and state law requires school
districts and charter schools to follow certain procedures to protect students with disabilities from
being punished for behavior related to their disabilities.90 When a school has suspended a student
with a disability for more than ten days in a row, or for ten cumulative days resulting from shorter
suspensions for a pattern of similar behavior, then the parent must receive a copy of the state’s
procedural safeguards,91 which lists the rights and protections that students with disabilities have
when suspended or expelled, and the student has the right to a Manifestation Determination
Review (MDR).92 When the student has an Individualized Education Program (IEP), the NYC
DOE is responsible for conducting the MDR, even for students in charter schools.93 When the
student has a Section 504 plan, and not an IEP, the charter school itself must hold the MDR. 94
At the MDR, the participants, including the parent, must discuss the student’s disability, the
supports recommended on the student’s IEP or Section 504 plan, and the behavior leading to the
student’s suspension(s) from school.95 If the behavior leading to the student’s suspension(s) was
caused by or had a direct and substantial relationship to the student’s disability or was the direct
result of the school’s failure to provide supports required by the student’s IEP or Section 504
plan, then the student’s behavior was a “manifestation” of his or her disability.96 When the
student’s behavior is determined to be a manifestation of his or her disability, the student has the
right to return to school immediately.97 In addition, the team must conduct a Functional
Behavioral Assessment (FBA) in order to evaluate the student’s behavior and create a Behavior
Intervention Plan (BIP) for the student based on the evaluation or revise the student’s existing
See 20 U.S.C. § 1415(k); N.Y. EDUC. LAW § 3214(3)(g).
See 20 U.S.C. § 1415(k)(1)(H); 34 C.F.R §§ 300.530(h), 300.536(a); N.Y. COMP.
CODES R. & REGS. tit. 8, §§ 200.5(f)(3)(iv), 201.2(e), 201.7(a).
92 See 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. §§ 300.530(e)(1), 300.536(a); N.Y. COMP.
CODES R. & REGS. tit. 8, §§ 201.2(e), 201.4.
93 N.Y. EDUC. LAW § 2853(4)(a) (assigning certain responsibilities under the Individuals with Disabilities Education Act (IDEA) to the
school district in which a charter school student resides); see also N.Y. STATE EDUC. DEP’T, CHARTER SCHOOLS AND SPECIAL EDUCATION,
http://www.p12.nysed.gov/psc/specialed.html.
94 Charter schools must comply with all federal and civil rights laws, including Section 504 of the Rehabilitation Act. See N.Y. EDUC. LAW
§ 2854(1)(b); see also N.Y. STATE EDUC. DEP’T, CHARTER SCHOOLS AND SPECIAL EDUCATION, http://www.p12.nysed.gov/psc/specialed.html.
Under Section 504, schools, including charter schools, are required to hold manifestation meetings for students with disabilities
whenever a “change in placement” occurs. Johnston County (NC) Sch., 56 I.D.E.L.R. 305 (2011); see Waln v. Todd County Sch. Dist., 388
F.Supp.2d 994, 999-1000, n.6 (D.S.D. 2005).
95 See 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e); see Johnston County (NC) Sch., 56 I.D.E.L.R. 305 (2011).
96 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e)(1)-(2); N.Y. COMP. CODES R. & REGS. tit. 8, § 201.4(c)-(d); see also Johnston County (NC)
Sch., 56 I.D.E.L.R. 305 (2011).
97 20 U.S.C. § 1415(k)(1)(F)(iii); 34 C.F.R. § 300.530(f)(2); N.Y. EDUC. LAW § 3214(3)(g)(3)(viii); N.Y. COMP. CODES R. & REGS. tit. 8, §
201.4(d)(2)(ii); see also Johnston County (NC) Sch., 56 I.D.E.L.R. 305 (2011).
90
91
24 | Civil Rights Suspended
plan to improve supports.98 Functional Behavioral Assessments and Behavior Intervention Plans
are tools that, when used correctly, may reduce a student’s unwanted behaviors and increase
positive, desirable behavior in school. If the student’s behavior is a manifestation of his or her
disability, the student may be excluded from school only if, based on specific criteria, the student
has been placed temporarily in an interim alternative education setting determined by the IEP
team, convened by the NYC DOE’s Committee on Special Education, or through the special
education impartial hearing system.99
If the student’s behavior is found not to be a manifestation of his or her disability, the school may
discipline the student in the same manner that it would discipline a student who does not have a
disability.100 However, the student is still entitled to receive educational services that will enable
the student to continue to participate in the general education curriculum and make progress on
the goals listed on his or her IEP, as well as a Functional Behavioral Assessment and Behavior
Intervention Plan.101
A parent has a right to an expedited hearing through the special education impartial hearing
system if he or she disagrees with the MDR decision or disagrees with the decision to place the
child in an interim alternative education setting.102
The procedure outlined above should occur for students with disabilities as well as students
whom the school has reason to believe may have a disability, when certain criteria are met, such as
when the parent has already requested a special education evaluation.103 In addition, if a parent of
a student who is not presumed to have a disability requests a special education evaluation during a
suspension, the student has the right to an expedited evaluation from the NYC DOE. 104
NYC DOE Discipline Policy
The NYC DOE policy follows the federal and state law and regulations for disciplining students
with disabilities. The DOE Chancellor’s Regulations on school discipline include procedures for
conducting expedited evaluations, conducting MDRs, providing procedural safeguards,
conducting Functional Behavioral Assessments and developing Behavior Intervention Plans,
providing alternative instruction that meet the requirements of state and federal law, placing
students in an interim alternative education setting, determining which students are eligible for
these protections, and requesting expedited impartial hearings.105 The DOE Discipline Code also
20 U.S.C. § 1415(k)(1)(F)(i)-(ii); 34 C.F.R. § 300.530(f)(1); N.Y. COMP. CODES R. & REGS. tit. 8, §§ 201.3, 201.4(d)(2)(i).
20 U.S.C. §§ 1415(k)(1)(G), (k)(2), (k)(3)(b); 34 C.F.R. §§ 300.530(g), 300.531, 300.532; N.Y. EDUC. LAW § 3214(3)(g)(3)(iv); N.Y. COMP.
CODES R. & REGS. tit. 8, § 201.7(e).
100 20 U.S.C. § 1415(k)(1)(C); 34 CFR § 300.530(c); N.Y. EDUC. LAW § 3214(3)(g)(3)(vi); N.Y. COMP. CODES R. & REGS. tit. 8, § 201.9(c)(2);
Johnston County (NC) Sch., 56 I.D.E.L.R. 305 (2011).
101 20 U.S.C. § 1415(k)(1)(D); 34 CFR § 300.530(d)(1); N.Y. COMP. CODES R. & REGS. tit. 8, § 201.10(c), (d).
102 20 U.S.C. § 1415(k)(3)(A), (k)(4)(B); 34 C.F.R. § 300.532; N.Y. COMP. CODES R. & REGS. tit. 8, § 201.11.
103 20 U.S.C. § 1415(k)(5); 34 CFR § 300.534; N.Y. EDUC. LAW § 3214(3)(g); N.Y. COMP. CODES R. & REGS. tit. 8, § 201.5.
104 20 U.S.C. § 1415(k)(5)(D); 34 C.F.R. § 300.534(d)(2)(i); N.Y. COMP. CODES R. & REGS. tit. 8, §§ 201.5(e), 201.6.
105 N.Y.C. D.O.E. CHANCELLOR’S REG. A-443 §§ II, IV.C.
98
99
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When ISAIAH was in the second grade, his charter school sought to expel him for impulsive
behavior. Isaiah’s charter school had a letter from Isaiah’s neurologist diagnosing him with
Asperger syndrome, as well as a copy of a letter his mother had written requesting special
education evaluations so that he could receive services. When Isaiah’s mother contacted AFC, he
had already been out of school for more than ten days as he awaited an expulsion hearing. Isaiah’s
mother had not received the procedural safeguards or information about any of her rights related
to the discipline of students with disabilities. The school had not contacted the DOE to expedite
evaluations or schedule an MDR. The school’s policy did not include any of the protections
required by law for students with disabilities or students presumed to be students with disabilities.
After AFC got involved, Isaiah began receiving services to address his behaviors. His behavior
improved and he was able to succeed at his charter school.
includes information about MDRs, procedural safeguards, and Functional Behavioral Assessments
and Behavior Intervention Plans.106
NYC Charter School Policies
Despite the detailed federal requirements for students with disabilities, 36 of the 164 charter
school discipline policies reviewed fail to include procedures that charter schools must follow
when suspending or expelling a student with a disability. While the other policies mention
procedures for students with disabilities, many of these policies describe the procedures
incorrectly or do not provide sufficient guidance to charter schools about the steps they must take.
AFC has received calls from parents where the charter school failed to follow the required
procedures when suspending students with disabilities. We have heard from many parents whose
students with disabilities have been suspended for more than ten days with no MDR because the
charter schools have not notified the DOE of the need to hold this required meeting. In these
cases, AFC or the parent has had to contact the DOE to initiate the MDR despite the charter
school’s obligation to do so. In one case, a student with an IEP was out of school for more than
a month without an MDR until AFC contacted the DOE to hold one for him. In another case,
the DOE scheduled the MDR after the parent walked into a DOE office looking for help because
her eight-year-old son, who had an IEP, was receiving only a few hours of tutoring per day at a
public library during his three-month suspension from his charter school. The charter school had
never contacted the DOE to conduct an MDR and had never informed the parent of the right to
an MDR.
Charter school discipline policies should include complete, accurate information about the rights
of students with disabilities when facing repeated class removals, or suspension or expulsion from
school, and these policies should offer sufficient guidance for charter school staff to implement
the required procedures properly.
106
N.Y.C. D.O.E. DISCIPLINE CODE at 4, 7, 13, 15.
26 | Civil Rights Suspended
• 52 of the 164 NYC charter school discipline policies we reviewed fail to
include the right to alternative instruction during the full suspension period, in violation of
state law.
What’s Required
Section 3214 states that, when a student is suspended, “immediate steps shall be taken for his or her
attendance upon instruction elsewhere.”107
While Section 3214 does not specify the degree or exact nature of the alternative instruction,
decisions of the Education Commissioner have explained that schools must provide a student
suspended from school with instruction that is “substantially equivalent” to the instruction the
school provided to the student prior to suspension108 and allow students to complete all of their
required academic courses.109 Alternative instruction must consist of actual instruction, and may
not consist solely of homework assignments or study hall.110 While the Education Commissioner
has found two hours of instruction to be acceptable in certain cases, the key question is whether or
not the instruction provided is “substantially equivalent.”111 As noted with respect to Key Finding
#7, above, there are additional alternative instruction requirements for students with disabilities.
NYC DOE Discipline Policy
The DOE Chancellor’s Regulations on school discipline require NYC district public schools to
provide all students who are serving suspensions of more than five days with full-time alternative
instruction.112 For the first five days of suspension, the DOE is required to provide full-time
instruction to elementary and middle school students and a minimum of two hours per day of
alternative instruction to high school students.113 In addition, the DOE is required to provide
information about the location of alternative instruction in its suspension notice. 114 The DOE’s
alternative instruction policy recognizes that students who are suspended from school need access
to adequate instruction during suspension if they are going to be successful when they return to
school.
NYC Charter School Policies
While most charter school policies include the right to alternative instruction, 52 of the 164
charter school discipline policies reviewed fail to include the right to alternative instruction for the
length of the student’s suspension. Of the policies that mention a student’s right to alternative
N.Y. EDUC. LAW § 3214(3)(e).
Appeal of M.W. and L.W., 50 N.Y. Educ. Dep’t Rep., Decision No. 16,238 (2011).
109 Appeal of Lee D., 38 N.Y. Educ. Dep’t Rep., Decision No. 14,029 (1998) (admonishing school board for failing to comply with
alternative instruction requirement where student was offered alternative instruction in mathematics, chemistry, and English, but no
instruction in history and Spanish).
110 Appeal of Miller, 35 N.Y. Educ. Dep’t Rep., Decision No. 13,598 (1996) (internal citations omitted).
111 See, e.g., Appeal of M.W. and L.W., 50 N.Y. Educ. Dep’t Rep., Decision No. 16,238 (2011).
112 See N.Y.C. D.O.E. CHANCELLOR’S REG. A-443 § III.B.1(e)-(g).
113 Id.
114 Id. §§ III.B.2(k), III.B.3(n)(3).
107
108
February 2015 | 27
instruction, 27 policies state that students will receive only two hours per day of alternative
instruction during suspension, regardless of the length of the suspension. Some policies require
the school to provide as little as one hour per day of instruction.
We have received calls from parents where the charter school has suspended their child and failed
to offer any alternative instruction during the suspension, as well as calls where the alternative
instruction has been inadequate under the law. For example, in one case, a ninth-grade charter
school student was suspended, without notice or the opportunity for a hearing, for more than a
month. His school failed to provide him with any alternative instruction during this time. In
another case, a four-day suspension placed a family living in a homeless shelter in crisis because
the school did not provide alternative instruction. The family’s shelter did not allow teenagers to
remain in the shelter unsupervised, and the parent was unable to take off from work. In a third
case, in which a student was suspended for 30 days, the charter school merely sent assignments
home with the student.
In more than two-thirds of AFC’s cases in which charter schools have provided alternative
instruction, the charter schools have offered only two hours of instruction per day. Therefore,
some charter school students serving long-term suspensions are receiving several hours of
instruction per day less than the DOE Chancellor’s Regulations require for district public school
students. It should be noted that a number of the charter schools offering only two hours per day
of alternative instruction have extended school days, thereby making the alternative instruction
much less than “substantially equivalent” to the instruction the student would normally be
receiving in school.
Charter school discipline policies should inform students and parents of their right to receive
actual alternative instruction, not simply assignments, immediately upon suspension or expulsion
from school. Furthermore, charter schools should provide full-time alternative instruction, or at a
minimum, should provide instruction that is substantially equivalent to the instruction provided to
students prior to suspension.
A charter school sought to expel WILLIAM, a 15-year-old
student with a disability. For 14 days, while waiting for the DOE
to conduct a Manifestation Determination Review, the charter
school sent William to meet with a paraprofessional for two
hours per day at a public library. The paraprofessional was not
qualified to provide instruction and did not attempt to do so.
Rather, William worked independently on class assignments
while the paraprofessional listened to music and played games
on his cell phone. William asked the paraprofessional for help,
explaining that he did not understand how to complete the
work on his own. The paraprofessional told William to try his
best to complete the work. Although William started the school
year doing well in school, he quickly began to fall behind in his
class work. The charter school began providing William with
28 | Civil
Rights
Suspended
actual
instruction
only after AFC intervened.
(1) Charter school authorizers and the Board of Regents should ensure that charter school
discipline policies meet the requirements of the law and are aligned with federal guidance. They
should not approve or renew charter schools unless they have discipline policies that comply
with the law.
Specifically, as discussed in this report, charter school authorizers and the Board of Regents
should ensure that charter school discipline policies: align infractions with penalties to help
ensure proportionate disciplinary responses; reserve expulsions for the most severe and
dangerous infractions that meet the standard established by the Education Commissioner;
prohibit suspensions and expulsions for absence, lateness, or skipping class; require written
notice prior to a suspension of any length; provide the opportunity for an informal conference
prior to a suspension of five days or less; provide the opportunity for a formal hearing prior to a
suspension of more than five days; include the appeals process and contact information; include
a complete description of the rights of students with disabilities; and include adequate, and,
preferably full-time, alternative instruction. Additionally, authorizers and the Board of Regents
should strongly encourage charter schools to include positive approaches to discipline, as
recommended in federal government guidance.
Charter school authorizers have expressed to us the limited capacity they have to review and
revise the discipline policies of the schools they authorize. Ensuring such capacity must be part
of any discussion about lifting the cap on the number of charters in New York State.115
(2) The State Legislature should amend state law to affirm that charter schools must abide by the
requirements of Section 3214 of the New York Education Law and its regulations, ending any
perceived ambiguity in the law.
(3) The State Legislature should amend state law to include explicit standards for expelling students
to ensure that expulsions for all schools, including charter schools, are limited to the most
severe and dangerous behaviors in accordance with decisions of the Education Commissioner.
It is notable that in a recent round of New York City charter renewals, the DOE, as authorizer, recommended renewal for multiple
charter schools despite finding that their discipline policies were out of compliance with federal law, and made revising the discipline
policy a condition of renewal for only one charter school. See N.Y. STATE EDUC. DEP’T, CHARTER SCHOOLS: CHARTER RENEWAL
RECOMMENDATIONS FOR SIX CHARTERS AUTHORIZED BY THE CHANCELLOR OF THE NEW YORK CITY DEP’T OF EDUC. (Dec. 2014), available at
http://www.regents.nysed.gov/meetings/2014/December2014/1214p12a3Revised.pdf. The Charter Schools Act makes clear that charter
authorizers shall not approve an application for a charter school unless the application, including the discipline policy, meets the
requirements of the law. See N.Y. EDUC. LAW §§ 2852(2)(a), 2851(2)(h). Furthermore, the Charter Schools Act requires the Board of
Regents to review charter school applications to ensure they meet the requirements of the law and to approve the applications or return
them to the authorizer with comments and recommendations. Id. § 2852(5-a).
115
February 2015 | 29
(4) The State Legislature should amend state law to require all public schools, including charter
schools, to provide full-time alternative instruction when students are suspended or expelled.
Pursuant to the DOE Chancellor’s Regulations, New York City public school students are
currently entitled to full-time alternative instruction when they are suspended for more than five
days.
(5) The State Legislature should amend state law to require charter schools to report suspension
and expulsion data. Data should be disaggregated by race and by the number of students with
and without disabilities and should include the number of Manifestation Determination Reviews
held for students with disabilities. Charter school authorizers and the Board of Regents should
consider suspension and expulsion data, as well as student attrition data, in charter school
renewal applications.
(6) Because charter schools and the DOE both have responsibilities to students with disabilities
who face suspension or expulsion, charter school authorizers should collaborate with the DOE
to develop a memorandum of understanding delineating their respective responsibilities to
ensure that these students are receiving protections required by federal and state law.
(7) Charter school authorizers and the Board of Regents, with input from parents, advocates, and
students, should develop a model discipline policy to provide guidance to charter school leaders.
In addition, authorizers should provide training for charter school leaders and staff in
suspension procedures, discipline of students with disabilities, and positive approaches to
discipline, such as restorative justice, peer mediation, social-emotional learning, or positive
behavior interventions.
(8) Charter school authorizers and the Board of Regents should identify and promote best practices
and innovative, positive approaches to discipline, as encouraged by the U.S. Departments of
Education and Justice.
(9) NYSED should post the Education Commissioner’s charter school suspension and expulsion
appeal decisions on the NYSED website, alongside the district public school appeal decisions
that are already posted. Currently, only the Education Commissioner’s district public school
suspension appeal decisions are available publicly. Posting suspension appeal decisions would
allow charter school parents, schools, and advocates to review the Education Commissioner’s
interpretation of charter schools’ obligations in discipline cases.
(10) The State Legislature should amend the Charter Schools Act to require all charter schools to
distribute their discipline policies to students and parents at the beginning of the school year and
post the policies on their websites along with contact information for the appeals/grievance
process.
30 | Civil Rights Suspended
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